Grantham v. Lucas

15 W. Va. 425, 1879 W. Va. LEXIS 34

• Court: West Virginia Supreme Court
• Decided: August 23, 1879
• Status: Published

Opinion

Johnson, Judge,

delivered the opinion of the Court:

It is contended by counsel for appellant, that it was error io sequester the rents and profits of the real estate of the defendant, until the amount of the liens and their priorities were ascertained ; and the case of Hollingsworth v. Brooks, 7 W. Va. 559 is cited to sustain their position. That cause has no application here, it being unlike this. The decree in the cause now before the court was not rendered for the purpose of enforcing the liens, but to preserve the estate pending the litigation. . If it was a case of that kind, there was no error of which the appellant could complain, as he had consented to a decree to sell the property at a time specified therein, if he should not before that time pay certain debts secured by deed of trust, which debts he had failed to pay.

The question arising upon the record and presented in the assignment of erroi is, whether pending a chancery suit to enforce liens upon real estate, the court may sequester the rents and profits thereof. We do not in this cause propose to go into the general powers of a chancery court to appoint receivers, but we think it is settled that pending a chancery suit to subject the debtor’s real Syllabus 1. estate to the discharge of liens upon it, the court has a discretion to sequester the rents and profits of such real estate, and appoint a receiver for the same, which discretion is reviewable in an Appellate Court. But the appointment of a receiver in such case may be dispensed Syllabus 2. with, if the debtor gives security, as the court shall direct, to account for the rents and profits, in case there should be a deficiency upon the sale of the premises under der the decree.. But if the debtor does not asir the Syllabus 3. court for permission to give such bond, it is not error to decree the appointment of the receiver. If the bond is given, of course no receiver will be appointed, and the debtor will be entitled to retain the possession of the property, and to receive the rents and profits from his lessees. Where the bill alleges that the debtor has no personal property, and that fact is not controverted by Syllabus 4. the answer, and the cause has been referred to a commissioner to report the liens upon the real estate of the debtor and their priorities, and to ascertain what real estate the debtor owns and the value thereof, and a report is made in the cause, showing the value of the real estate and the amount of liens thereon, and .no exception is made to the report, as to the value of the real estate, as therein ascertained, and the report is excepted to because further credits are claimed by the debtor not allowed by the commissioner, and it appears from the report, that if the credits were allowed the liens would still exceed the value of the property, and it appears that the debtor has not sufficient personal property to cover the deficiency, (which facts all appear in this cause) although the report is not confirmed, the court may properly appoint a receiver to take charge of the estate, to receive the rents and profits from tbe lessees then in possession, and if the debtor is in possession of any part of the land, to rent the same and receive the rents and profits thereof, to have the same forthcoming when so ordered by the court. Whether it is necessary that it should affirmatively appear upon the record before a court, pendente lite, will sequester the rents and profits of the real estate, that the debtor has not sufficient personal property to supply any deficiency of the real estate at the sale to pay the liens, is not decided in this cause. It appears in this cause that the defendant had no personal property. Unless Syllabus 5. the receiver is the sheriff of the county, he should of course be required to give proper bond and security. In this cause the decree required the sheriff of the county to rent the premises and receive the rents and profits; and under our statute no additional bond is required of him. On this subject see Verplank v. Caines, 1 Johns. Ch. 57; 2 Danl. Ch. Pr. 1715, 1737; Bloodgood v. Clarke et al., 4 Paige 574; Bank of Ogdensburg v. Arnold, 5 Paige 38; Sea Insurance Co. v. Stebbins et al., 8 Paige 565; Quincy v. Cheeseman, 4 Sandf. 433; Willis v. Corlies, 2 Ed. Ch. 281; Smith v. Butcher, 28 Gratt. 144.

There are two ways of enforcing judgment liens, either by renting the property where the rents and profits will pay the liens charged upon the real estate within a reasonable time, or by selling the real estate ; and whether the lien is enforced in the one way or the other, the court-should act with fairness and prudence and with a just regard for the interest of all the parties interested, whether they be debtors or creditors. The court in enforcing the lien of a judgment in either of the inodes prescribed, pen-dente lite, will not take the property out of the possession of the debtor, unless it is necessary to preserve the rents and profits to meet a deficiency at the sale. When it appears to be necessary to sequester the rents and profits to meet such deficiency, justice to the creditors requires that the property should be taken out of the debtor’s possession, and the rents and profits sequestered.

For the foregoing reasons the decree of the 16th day of November, 1875, is affirmed with $30.00 damages and costs.

Judges Haymond and Moore Concurred.

Decree Appirmed.